July 2011

September 2010

July 2017: New Legislation Bill introduced to Parliament

A new Legislation Bill was introduced to Parliament on 20 June 2017. The Bill, which rewrites the Legislation Act 2012, has four main elements:

Access to secondary legislation—the Bill delivers better access to New Zealand’s legislation by requiring all secondary legislation (that is, legislation made by Ministers, officials, or agencies under powers delegated by Parliament) to be published on the New Zealand Legislation website.

Interpretation Act—the Bill absorbs the Interpretation Act 1999 with some technical enhancements. This brings the principles and rules that underpin the interpretation of legislation, as well as its making and publication, into one Act.

Legislative disclosure requirements—the Bill enacts legislative disclosure requirements to make available key information about the development and content of new legislation. This supports legislative scrutiny and encourages the production of high-quality legislation.

The content of the Legislation Amendment Bill that was introduced to Parliament in 2014 has been incorporated into the Legislation Bill, and the 2014 Amendment Bill has been withdrawn from the House.

Access to secondary legislation

The Bill addresses the problem that currently there is no single place where an individual, a business, or Parliament can see all of New Zealand’s legislation. Secondary legislation that is drafted by the PCO is published in full on the NZ Legislation website, while secondary legislation that is drafted and made by government departments, agencies, and other non-governmental bodies is published either in the Gazette or on a variety of different websites, or is not readily available to the public at all.

The Regulations Review Committee, the New Zealand Productivity Commission, and the Government Inquiry into the Whey Protein Concentrate Contamination Incident have all raised concerns about the impact this has on peoples’ ability to access their rights and obligations, the cost of doing business in New Zealand, and on Parliament’s ability to oversee the exercise of delegated law-making powers.

If enacted, the Legislation Bill will solve these problems by extending the scope of the NZ Legislation website to include all secondary legislation, with limited, specific exceptions. The main exception is that secondary legislation made by local authorities will not be required to be published on the NZ Legislation website at this stage.

The Bill also significantly simplifies the processes that apply to secondary legislation. Under the Bill, there are only two categories of legislation: Acts of Parliament and secondary legislation. Unless a restricted and specified exemption applies, all secondary legislation:

must be published on the NZ Legislation website

must be presented to the House of Representatives

is disallowable.

For agencies empowered to make secondary legislation, publication on the NZ Legislation website will replace most of the publication and notification requirements that currently apply. Publication on the website will likely also enable a simpler process for presentation of secondary legislation to the House.

To provide certainty about which instruments made under an Act are secondary legislation, we are preparing a separate Bill to amend empowering provisions across the statute book. This will remove the uncertainty that currently exists under the Legislation Act 2012, which requires different tests to be applied in different circumstances, including a generic test that needs to be applied by agencies as to whether an instrument has “significant legislative effect”.

The PCO is analysing all empowering provisions for this purpose, and is working with administering agencies to agree the amendments that will be made via the amending Bill.

The Legislation Bill provides that secondary legislation comes into force only if it has been published on the NZ Legislation website (unless its empowering Act expressly states otherwise). This approach will provide certainty to users of the NZ Legislation website: if secondary legislation is not published on the website it will not have effect. However, agencies will need time to make changes to their existing processes for drafting and publishing secondary legislation. The Bill therefore includes transitional provisions to enable agencies to transfer their existing legislation to the NZ Legislation website, and to bring in the new publication requirements progressively, once we are confident that the PCO and agencies are in a position to comply with them.

Implementation of the Legislation Bill will require the development of tools and processes for agencies to draft secondary legislation in a format suitable for publication on the NZ Legislation website and to lodge it with the PCO. The preferred outcome is for secondary legislation drafted by agencies to be published in the same way as Acts and Legislative Instruments are now. Over the coming months, we will be working with agencies to trial solutions for drafting and lodging secondary legislation that would achieve this. We will also encourage agencies empowered to make secondary legislation to identify their existing stock of legislation, so it can be put into a form suitable for publication.

What this means for you

We want to help you get ready for shifting publication of your secondary legislation to the NZ Legislation website by finding all the instruments you currently have out there and putting links on our website to them. You can contact us on ASIP@pco.govt.nz.

Interpretation Act 1999

Moving the Interpretation Act into the Bill will make it easier for people to find the interpretation principles and rules.

The Bill largely carries forward the existing law. However, it makes some technical improvements to address issues that have been identified since 1999. Most of the changes were analysed in a discussion document published by PCO in 2013.

The changes include:

a new definition of “send by post” to clarify when an article is deemed to have been sent and delivered that can apply despite changes over time in postal delivery practices

where there is a power to prescribe a form, it includes the power to approve or prescribe information in place of the form, and in another format or medium

provisions to help determine when legislation commences or how to calculate the start and end of monthly periods set out in legislation

updating the definition of the North Island and of the South Island to include official alternative names:

North Island or Te Ika-a-Māui

South Island or Te Waipounamu

allowing regulations made under an Act to consequentially amend regulations made under another Act

clarifying that the meaning of an enactment must be ascertained from its text in the light of its purpose and in its context. The practice of the courts to refer to context (including for example parliamentary history) is now orthodox and routine.

Responsibility for administering the interpretation rules will transfer from the Ministry of Justice to the PCO.

Legislative disclosure requirements

The Bill enacts departmental disclosure requirements for Government-initiated legislation, which are currently being implemented administratively.

Departments responsible for developing legislation currently have to prepare statements for most Government Bills and substantive Government amendments (SOPs), and provide them to the PCO for publishing when a Bill or an amendment is published.

The Bill requires the department to disclose key information in four broad areas:

the policy background of the legislation (eg relevant published reviews and regulatory impact analysis)

the testing that the legislation has undergone (eg external consultation and vetting for inconsistencies with the New Zealand Bill of Rights Act 1990)

any departures from specified legislative guidelines or standards endorsed or adopted by the Government (eg aspects of the LAC Guidelines, such as provisions that retrospectively alter rights, freedoms, or impose obligations)

any other significant or unusual features of the legislation (eg powers to create secondary legislation, or that could result in the compulsory acquisition of property).

These four areas are closely aligned with the current administrative requirements. The core set of specific disclosures required in these four areas will be set out by ministerial notice approved by the House of Representatives. A ministerial notice may also extend the requirements to specified secondary legislation. However, no decision has been made about this at this stage and consultation with departments would be undertaken first.

The requirements are designed to improve the quality of legislation through supporting more informed parliamentary and public scrutiny of that legislation.

Minor updates to the Legislation Act 2012

The rewrite of the Legislation Act 2012 provides an opportunity to update, recast, and make some small technical amendments to some provisions.

Some changes will:

give the PCO an explicit objective of promoting high-quality legislation that is easy to find, use, and understand and, to that end, exercising stewardship over New Zealand legislation

extend the PCO’s functions to include providing guidance and other support for, and keeping under review, practices relating to the design, drafting, and publication of legislation

make small amendments to improve the revision programme powers and procedure

update the standard provisions for the incorporation of material by reference to make them more flexible and technology neutral.

Commencement

The Bill is intended to start in two broad phases:

Some early amendments will be made on Royal assent. This will enable targeted improvements to be made immediately to the current Legislation Act 2012 (for example, removing the redundant obligation to designate bookshops for the sale of legislation) and realign some drafting responsibilities under other Acts.

The commencement of the rest of the Bill depends on the timing of the business and IT changes needed for the PCO to publish all secondary legislation on the NZ Legislation website and on the changes needed to put in place the disclosure requirements regime. However, the Bill will commence three years after Royal assent at the latest.

July 2017: Information for instructors: survey results

In March we sent you a survey aimed at finding out what you need to know from us, and the best way for us to provide that information. We asked you to rate a list of FAQs, and for your thoughts on the resources we currently provide.

Thank you to those who responded—you have given us some very useful information.

The FAQs were all rated very useful or somewhat useful. Some people were looking for detailed information at specific points of the legislative process, while others were looking for basic-level introductory information. It is clear that providing answers to the FAQs will fill a need—but it is also clear that one size does not fit all.

The resources we already provide rated well (see above), though with some variability. As you’d expect, newer instructors appreciated the more introductory information. Again, one size doesn’t fit all. It is also clear that some resources are not reaching the people who might need them.

As a first step we have made our “Working with the PCO kit” (a brief summary of key information for instructing us) available on our website: Kit for instructors »

We are now looking at how we can provide information in a multi-layered way: easily accessible summaries that map out the overall process, while letting you dig into the detail when you need it. Further resources and ways to access the information will sit alongside. The final shape may evolve as we work through the materials and consult further, but the result should be easier and more flexible for you to navigate.

July 2017: New Statutes Amendment Bill

Cabinet has agreed to include a Statutes Amendment Bill (SAB) in the 2017 legislative programme. The Bill will likely be introduced in mid-2018. A Cabinet Office Circular that prescribes the process and timeframes for each stage will be published in July.

SABs are designed as vehicles for technical, short, and non-controversial amendments to a range of Acts. The Cabinet Office Circular will provide guidance on determining whether an amendment meets the criteria. In addition, PCO drafting team managers are happy to assist.

Note that the PCO will not begin drafting any amendment until confirmation of support from all parties has been obtained.

supporting our staff—for example, by making available plain language resources and expert plain language help

measuring our performance against the standard.

We are also developing materials to support the standard and checklist. The material will include examples of best practice, helpful hints, and guidance about when it might be sensible to depart from the standard.

March 2017: What are your top FAQs for us? How should we give you the answers?

We are reviewing how we provide information to instructing departments, and we’d like your input.

The PCO provides information to instructors through seminars, resources on the PCO corporate website, meetings, the PCO Quarterly, by answering queries—but how does this work for you? are you getting what you need to know at the right time and in the right way?

We will soon be sending out invitations to take part in a survey aimed at answering these questions.

We have begun by listing the questions that come up regularly, shown below. How many of these topics are important to you, and is anything missing?

The survey will also ask for experiences with those resources, whether their content and format is useful, and whether there are other approaches that would work better.

The survey results will feed into providing FAQs targeted to instructors, and reviewing the content of existing resources.

We are keen to hear from a wide spectrum of people involved in providing drafting instructions. If you are on the PCO Quarterly mailing list, you will receive an invitation. We hope you’ll have a few minutes in which to give us your views.

Our draft FAQs

General

Do I need policy approval from Cabinet, or can the Minister approve drafting?Will the PCO draft in advance of the policy approval being obtained?What if a new policy proposal comes up in the course of drafting—what are the options for getting that policy incorporated?How long will drafting take? Who should I consult with?When can I send the draft legislation to stakeholders outside government? (ie what is the position with legal professional privilege?)For disclosure statements, where is the template and how do they get published?

Legislation programme

What is the legislation programme and how does it work?What if the Minister wants a Bill that is not on the legislation programme?How should I estimate size of a Bill when doing a leg bid?How should I assess complexity of a Bill when doing a leg bid?Why do you need to estimate secondary legislation associated with a Bill?

Bills

Do I have to do a RIS?When should LDAC be consulted?

Legislative Instruments

How do I calculate the 28 day rule? Do I have to publish them in the Gazette?What can I incorporate by reference in them?How quickly will they go up on the NZ Legislation website after being made?Do we have to arrange for presentation to the House for these?When should I get a supplementary Gazette? How do I arrange for a supplementary Gazette?Legislative Instruments not made by Governor-General in usual Cabinet process: How do I arrange for their notification in the Gazette?

Other instruments (not drafted by PCO)

Do we have to arrange for presentation to the House for these?Will they appear on the NZ Legislation website?

Post-enactment/publication issues

Can the PCO fix this error? Can I publish the legislation on our agency’s website before it goes on the NZ Legislation website? Or at all?Why does the PCO not like including links in legislation to specific pages on external websites?

Use of forms and images

What is the best way to provide forms in legislation?What formats should images be supplied in?Why does the PCO prefer text to images?

We will be sending out the survey soon to those on the PCO Quarterly mailing list, asking you to rate these FAQs.

March 2017: Improving access to formulas in legislation

We have identified a number of formulas in current legislation on the website that are formatted using tables or graphics. Although they may look ok in the PDF version of legislation, they don’t necessarily display well in the HTML versions (the section by section view) and, more importantly, screen readers used by the visually impaired cannot “read” them.

The PCO is committed to providing free access to New Zealand legislation to all citizens. To make the formulas “readable” by a screen reader, the formulas need to be expressed on one line. For example, the image at right needs to be expressed as “a ÷ b”. In some cases users will not be able to detect any change to the formulas, but by using the correct “behind the scenes” coding the formulas will be screen-reader friendly.

We have recently contacted the agencies that are responsible for legislation that contains these formulas. We have identified the provisions where the formulas are used, and provided Chief Legal Advisers with what we think is appropriate as a one-liner replacement of the existing formula in each case.

Many of the formulas are very simple, but others are complex and will require careful review. Once we have received approved replacement text from agencies, we will make the changes to the website and the visually impaired will be able to “see” these elements in your legislation.

The PCO will make the changes to the documents and replace them on the legislation website using the editorial powers in section 25 of the Legislation Act 2012. That section allows the Chief Parliamentary Counsel to make changes to the way numbers, dates, times, quantities, measurements, and similar matters, ideas, or concepts are referred to or expressed to be consistent with current drafting practice.

Please note that not all formulas are affected and only 12 agencies have been contacted. If you would like further information or have any questions about this process, please contact us.

December 2016: Editorial

Well, it’s been quite a year. Which has made my first seven months as Chief Parliamentary Counsel full of upheavals—international, physical, and domestic.

But while the Hurunui/Kaikōura earthquakes, for example, have caused so much heartache to so many people, it has been a time to show how well we can work across government to produce timely and effective legislation. As I write, the fourth item of earthquake-related legislation is passing through its final stages.

Another positive is the shape of the Order Paper. It’s looking slimmer than it has in years. The PCO has worked hard together with officials to support the Government in its sustained push to work through the legislative programme.

Looking to the future, legislative stewardship is central to thinking at the PCO. So I would like to commend Victoria University of Wellington for hosting the recent conference on legislative stewardship. It provided a good opportunity to reflect on stewardship and what it means in practice at a time when many of us are examining how best to deliver the responsibility for the longer term that stewardship brings. We have been exploring what legislative stewardship means for the PCO given our whole of legislation perspective.

Cassie Nicholson and Jonathan Robinson presented our initial thinking. Legislative stewardship, in our view, requires us to ensure that New Zealand’s current and future laws are accessible, constitutionally sound, and fit for purpose. Richard Wallace outlined for the conference the scope of the Access to Subordinate Instruments Project, which is a good illustration of stewardship in practice. Publishing subordinate instruments on the New Zealand Legislation website will certainly provide the public with greater and easier access to law. See page 5 for the latest project news. And congratulations to the project team on securing Cabinet’s approval for the project.

Thanks to everyone who has worked with the PCO this last year. It’s nearly time for all of us to take a well-earned break. All the best to you and your families: rest, recuperate, and enjoy.

How does the legislation programme work?

Government Bills are managed through an annual Legislation Programme. To include a Bill in the 2017 Legislation Programme, a “bid” is required. Cabinet Office Circular CO (16) 5 sets out the process and the form for submitting them.

Bids must be received by the Legislation Coordinator in the Cabinet Office by 10 am on 27 January 2017.

Bids must be received for all Bills, whether new, being drafted, or already before the House or select committee.

New Bills can be added to the Legislation Programme during 2017, but it is preferable to include them at the beginning of the year.

What do I do if I don’t know the Bill’s timing?

Please do not put “unknown” but do the best you can to provide a realistic estimate. A realistic timetable must have been agreed with the PCO.

If the PCO advises that the proposed timetable is not realistic, then this advice must be clearly included in the bid.

You should consult your PCO Drafting Team Manager on the timetabling appropriate given the size, complexity, and timing of your Bill. See page 12 for their contact details. But here are some rules of thumb:

The time needed is affected by both the size of the Bill (a larger Bill requires more drafting and crucially more checking, even if not very complex) and the complexity of the Bill (see below).

A 50-clause Bill of medium complexity should be estimated to take 3 months from instructions to introduction. This takes account of drafting time, review by you, consultation with other government departments and LDAC, quality assurance requirements for PCO, and the NZ Bill of Rights Act vet.

But we have peak busy times in the year, and with 2017 being an election year those peak times will come earlier. So we caution that for next year:

for a Bill to be passed before the election it generally will need to be introduced by the end of 2016 or very early in 2017

for a Bill to be introduced before the election, you will generally need to have instructions to us as soon as possible in the first quarter of 2017.

If you have an exposure draft process, you need to add in the time the exposure draft will be out for plus a further 4–6 weeks minimum to allow for further instructions and changes to be made.

Take into account your own capacity to turn around drafts and responses to queries.

Delays in the policy process cannot be made up by shortening drafting time. Also, if timing imperatives result in shortcuts in the policy process, the unresolved issues generally will increase the drafting time needed.

How do we estimate size?

We consider bills to be:

Small if they have up to about 20 clauses. Some examples are the Climate Change Response (Removal of Transitional Measure) Amendment Bill, the Canterbury Property Boundaries and Related Matters Bill, and the Health (Fluoridation of Drinking Water) Amendment Bill. These will usually be small, targeted measures.

Medium if they have between 20 and about 80 clauses. Some recent examples are the New Zealand Business Number Bill and the New Zealand Flag Referendums Bill.

Large if they have more than 80 clauses. Some recent examples are the Land Transfer Bill, most Treaty settlement Bills, the Customs and Excise Bill, the Education (Update) Amendment Bill, and the Fire and Emergency New Zealand Bill. These will often be replacements of whole current Acts, or multi-pronged amendments to a number of Acts.

When you estimate the size of an amendment Bill, you need to take into account the size of the amendments proposed (not just the number of clauses in the principal Act you need to amend).

How do we estimate complexity?

In assessing whether a Bill is low, medium, or high complexity, you need to look at policy, legal, and drafting dimensions. The length of time the department has spent developing the proposals to this point is often a guide to how long you need to allow for the rest of the process and how complex the Bill is likely to be. For example, if the policy work has taken many months, this may indicate that the Bill is of medium to high complexity. A Bill rarely ceases to be complex once policy is settled.

Complexity is affected by:

the novelty and/or difficulty of the legal concepts you are creating

the number of existing Acts that are affected, and the degree of complexity of the existing legislation you are amending—changes to a scheme that already has a number of overlapping Acts tend to be highly complex

the extent of change required

how strongly related the changes are (so better targeted) vs having many initiatives that are weakly related (creating more “moving parts”)

the degree to which you can expect the policy to be “settled” vs in flux during the process (this may be affected by the amount of time you have to settle the policy well before starting drafting, and other factors like stakeholder involvement, etc)

the use of novel (rather than established) concepts, novel (rather than standard) provisions, your own “version” of established concepts rather than simply relying on the generic approach (for example, for Crown entities)

the extent of consequential amendments (very extensive amendments, even if relatively simple, will increase checking time)

the degree of “staging” of commencement and the need for complicated transitional provisions

whether the legislation being amended is already heavily amended and multi-pronged in terms of policy and/or complex

a lot of detail in the Bill.

How does the estimate for secondary legislation work?

The Cabinet Office circular also asks you to provide timing estimates for secondary legislation associated with your Bill if they are needed within 12 months of enactment for your Bill to commence and operate effectively.

This is to ensure that the regulatory package as a whole is well thought through and coordinated. In particular, it cuts down on the risk that:

a Bill will be passed with a fixed date commencement, but without enough time to develop the regulations needed for it to commence effectively

a Bill will be passed with an Order in Council commencement and “sit on the books” for a long time awaiting the necessary regulations. Latent legislation causes uncertainty for users, complexity for other legislation (when you have to deal with the risk of further amendments coming into force), and increased risk of wasted Government and parliamentary time.

The Cabinet Office circular requires:

policy decisions for associated regulations to be made before the first reading of the Bill

drafting instructions on them to be sent to PCO before the Committee of the whole House stage of the Bill—this also helps identify any issues with empowering provisions in time for them to be addressed by amendments at the Committee stage.

When should LDAC be consulted?

You need to state in your bid whether a Bill will be referred to LDAC for design advice, or explain why LDAC advice will not be sought. You need to factor consultation with LDAC into your timetable for a Bill. The LDAC website states that significant or complicated legislative proposals should be referred to LDAC for consultation. Other legislative proposals are also suitable for referral to LDAC if they raise the following issues:

basic framework/design issues

matters relating to instrument choice

issues relating to consistency with fundamental legal and constitutional principles

Certain provisions in the Act relating to the High Court Rules and access to information came into force on 18 October 2016. The remainder of the Act comes into force on 1 March 2017.

This Act continues the High Court, Court of Appeal, and the Supreme Court, replacing the Supreme Court Act 2003 and Judicature Act 1908. Many of the provisions in those Acts are retained, albeit in updated language and in a more coherent arrangement. However, there are some changes, including:

the existing High Court Rules are deemed to be part of the Act but are now published as the High Court Rules 2016 and treated as if they were a regular legislative instrument (refer PCO Quarterly, September 2016 No 3/16 for further details)

the establishment of a judicial panel in the High Court from which Judges can be allocated to hear specific types of commercial cases

the Commercial List in the High Court is not continued

a High Court Judge now has power in certain cases to issue orders restricting parties from commencing or continuing civil proceedings

an appeal against an order or decision of the High Court made on an interlocutory application in civil proceedings requires the leave of the High Court unless the order or decision effectively determines the proceedings (eg an order striking out proceedings or granting summary judgment).

Certain provisions in the Act relating to access to information came into force on 18 October 2016. The remainder of the Act comes into force on 1 March 2017.

This Act replaces the District Courts Act 1947 and reconstitutes the District Courts as a single court with divisions for a Family Court, Youth Court, and Disputes Tribunal. This means that references are now to the District Court, the Family Court, the Youth Court, and the Disputes Tribunal.

Other changes include:

increasing the monetary limit of the District Court’s civil jurisdiction from $200,000 to $350,000

a District Court Judge now has power in certain cases to issue orders restricting parties from commencing or continuing civil proceedings

updating the maximum financial penalty for a number of offences against the Court.

This Act (the new Act) comes into force on 1 January 2018. Section 87 of the Judicature Act 1908, and section 62B and 65A of the District Courts Act 1947, which currently provide for interest on debts and damages, are repealed on that date.

The purpose of the new Act is to recognise the cost to a claimant of a delay in the payment of money and provide for an award of interest that realistically compensates for that delay.

The following are key elements:

interest is no longer at the discretion of the Court. It must be awarded on all money claims except in very limited and special circumstances

the rate of interest is not prescribed but constantly fluctuates in accordance with the Reserve Bank six‐month term deposit rate, and interest is compounded so that it yields the per annum simple interest rate over a year

interest must be awarded for the period beginning on the day on which the cause of action arose (but if the claim was not quantified on that date, on a later date specified by the Court in its judgment)

interest must be calculated using the internet site calculator and the Act sets out how that must be done (with examples, see section 14).

A number of Acts provide for interest to be calculated in accordance with section 87 of the Judicature Act 1908 or section 62B of the District Courts Act 1947. This mechanism obviously won’t work from 1 January 2018. The relevant existing Acts are therefore consequentially amended (Schedule 3 of the new Act).

This Act comes into force on 1 March 2017. Its purpose is to facilitate the use of permitted documents in proceedings—that is, documents that are electronic in form). It sets out the requirements for permitted documents and their use. The Act applies to any court or tribunal, any particular jurisdiction of a court or tribunal, any court or tribunal located in a particular place, or any particular jurisdiction of a court or tribunal located in a particular place specified by Order in Council. Orders can be made that provide that the Act does not apply to particular classes of persons. Orders are yet to be made under the Act.

December 2016: Transitional and savings provisions

The PCO now applies the policy that all transitional provisions relating to an Act or Legislative Instrument will be located in a schedule to the principal Act or Legislative Instrument. (Here, transitional provisions includes savings provisions and application provisions dealing with transitional issues.)

Every piece of amending legislation will insert the transitional provisions either into a schedule that already exists for that purpose in the principal legislation, or into a new schedule. The schedule will be number 1, or 1AA if the principal legislation already has a Schedule 1.

All new principal Acts will have a Schedule 1 for transitional provisions, even if there are no transitional provisions relating to the Act as first enacted.

The new approach makes it easier for the user of the legislation to find transitional provisions. In the past, when transitional provisions were not inserted into the principal legislation, finding them could be difficult.

July 2016: Editorial: Death, taxes and change

Fiona Leonard

Everyone will know the old saying: there are two certainties in life, death and taxes. I would also add a third­—change. For example, take access to legislation. Ten years ago, access meant getting all primary and secondary legislation drafted by the PCO online and officialised. Done. Now there is a need for the online legislation to be responsive to hand-held devices, something that wasn’t envisaged a few years ago.

For the present, however, there is clearly a pressing need for easy access to all legislation, regardless of who drafts it or how it is made or published. This has been highlighted in a number of reports including the Regulations Review Committee Inquiry into the oversight of disallowable instruments that are not legislative instruments (sometimes referred to as DINLIs). The Government response to this report on 9 December 2014 included a direction to the PCO to explore an amendment to the Legislation Act for the provision of a register of DINLIs based on the Australian Commonwealth model, reflecting a similar Cabinet decision from 5 March 2014.

The result was the establishment by PCO of the Access to Subordinate Instruments Project (ASIP). The overall objective of this project is to improve access to legislation by publishing all subordinate instruments on the New Zealand Legislation website. ASIP aims to provide a single, comprehensive, official, public source of New Zealand legislation.

This project is an important all-of-Government change, and a big task. Preliminary investigations initially indicated 68 agencies with delegated legislation-making powers. That number has now climbed to 107 agencies. The PCO is committed to delivering a solution that reflects the needs of these agencies. There will, however, be some trade-offs given the number of agencies involved.

ASIP is now in its formal establishment stage and the PCO is currently developing a business case with a view to putting up a Cabinet Paper by the end of 2016. In recent weeks the ASIP team, led by Richard Wallace, has contacted your Chief Legal Adviser or equivalent to get key contacts from your organisation, and has invited them to attend a presentation on ASIP. Following the presentation, the ASIP team will be seeking feedback on your agency’s current processes and systems for making subordinate instruments. See below for more details.

We look forward to working with you to further the project. We are confident this change will ultimately benefit all agencies who are required to draft and administer subordinate instruments. It will also assist public sector chief executives to fulfil their responsibilities for the stewardship of the legislation administered by their department or agency. Finally, it will be of benefit to everyone, as they will be able to readily access their legal rights and obligations.

July 2016: Presenting Other Instruments to the House

All disallowable instruments (see section 38 of the Legislation Act 2012) must be presented to the House of Representatives no later than the 16th sitting day after the day on which they were made. This enables scrutiny by the Regulations Review Committee to take place.Disallowable instruments are either Legislative Instruments (which are drafted by the PCO) or “Other Instruments” (which are drafted by another agency, eg a government department).

Agencies’ responsibility for tabling Other Instruments

If an instrument is not drafted by the PCO, it is the agency’s responsibility to arrange for its presentation to the House. This can be done on any working day, irrespective of whether the House is sitting (excluding the period from 25 December to 15 January).The Office of the Clerk has created a list of steps to help agencies present their instruments to the House of Representatives within the required time frame:

the agency makes two hard copies of the instrument

the agency sends the copies to the responsible Minister’s office

the Minister’s office staff follow the procedure established in their office for handling the copies

the Minister’s office staff give the Bills Office approval to present the instrument

the agency delivers 10 copies to the Office of the Clerk (Attention: Bills Office) on the morning of the day on which the instrument is due to be presented to the House

the Bills Office manages the presentation of the instrument to the House.

Please note that the agency’s responsibility to present does not end with sending copies of the instrument to the responsible Minister’s office. The agency may need to proactively engage with the office to ensure that the instrument is presented within the required time frame.

Having given my fair share of “departing CPC reflections” presentations, and having cleared my office in the Reserve Bank building, both to allow Fiona to move in and then to make way for the refit of our 12th and 13th floors, has provided me with a rich source of material about the past. But I want to look forward in this editorial—both to welcome Fiona and to encourage you all to provide her with the support and assistance you have to me over the last eight-and-a-half years—and to look at some of the challenges and opportunities coming up.

The PCO has changed quite fundamentally since 2007: we are now a very substantial drafting and publishing office with a huge public presence in the form of www.legislation.govt.nz. That public presence will continue to drive demands for change in the way we both provide access to legislation and, inevitably, draft that legislation. We have already responded to some of those demands with the launch of the Access to Subordinate Instruments Project (ASIP) led by Richard Wallace and the soon to be appointed Deputy CPC (Access). This will truly make all NZ current legislation available to everyone (including Parliament).

Similarly, building upon the first revision law programme that is now underway with the imminent introduction of the Contract and Commercial Law Bill (a fantastic joint project between the PCO and MBIE), the PCO is also about to take on a new approach (agreed with the central agencies), jointly with Departmental Chief Executives, to better deliver real and effective stewardship of the statute book.

Developments in drafting of, and access to, legislation include beginning to tackle the challenges of dual (multi?) language drafting and publishing, a refresh of the PCO’s commitment to plain language and clearly structured legislation (at all levels), continuation and possible growth of the much appreciated Pacific Island drafting resource, and delivering on our statutory role to advise on and assist with the drafting of legislation that we are not responsible for drafting.

There has been much discussion—both here in New Zealand and elsewhere—about The Future of the Professions by Richard and Daniel Susskind.1 You don’t need to subscribe to the full apocalyptic theory—the gradual replacement of professionals by increasingly capable systems—to recognise that change in our world will affect the way in which all of us work, whether instructing the PCO or working for the PCO (and indeed whether the work we currently do will be required in its current format, or at all, in the future).

We need to look outward and forward, both as a profession and as part of the New Zealand State Sector, to ensure that we remain relevant, and the service that we provide is both efficient and effective. Crucially, that service must be what is needed and must respond to the changing demands of society and the institutions of government and the public that we serve, the executive, parliament, the judiciary, and the citizens of New Zealand—who will also be changing the way they want to access, read, understand, and apply legislation.

Exciting times ahead—especially for those willing and capable of adapting to the changes that technology and society will make.

All the very best for the future and many thanks for the past eight-and-a-half years.

David Noble6 May 2016

1www.susskind.comThe Future of the Professions: How Technology Will Transform the Work of Human Experts—22 Oct 2015 Oxford University Press

The Attorney-General Christopher Finlayson visiting the PCO in April to announce that Fiona Leonard would be the next Chief Parliamentary Counsel.

David Noble stepped down as Chief Parliamentary Counsel on 6 May, and Fiona Leonard took over the role the following day. David Noble has been appointed a temporary Special Parliamentary Counsel.

Commencement date—calculation of monthly periods

There have been a number of queries over the years relating to the commencement of sections of an Act where the commencement date is expressed as being a specified number of months after the date of Royal assent. The PCO’s long-standing practice is to draft on the basis of “the corresponding date rule”. This is a general rule established in case law that can be applied to determine when a month starts and ends.

The corresponding date rule operates so that “a calendar month ends at midnight on the day in the ensuing month immediately preceding the day numerically corresponding to the commencing date” (Police v Maindonald [1971] NZLR 417 (SC)). This rule is applied in conjunction with rules in the Interpretation Act 1999.

An easy way of understanding the application of the rule is to exclude the date on which the Act received the Royal assent. So, if your Act was assented to on 1 January 2016 and certain sections were expressed as coming into force six months after the date of assent, those sections would come into force on 1 July 2016. This means “at the start” of 1 July 2016.

This is, as far as research has been able to take us, the first enactment in both Māori and English of an Act reflecting and giving effect to Government administrative policy. There is a long history of the proceedings of Parliament being able to be conducted in both English and Māori, and of some Bills being prepared in Māori as well as in English to assist the Māori members to be able to participate in the debates on Bills of particular relevance to Māori. These were published as pamphlets. However, none seems to have been enacted in the Māori language, and these initiatives were, it seems, defunct by about 1900. The Māori Language Act 1987 was not, ultimately, enacted in both languages. Even though it was introduced as a dual-language Bill, that Bill was enacted in English only. A translation was subsequently published in the annual volumes of statutes by direction of the Attorney-General. That translation, not having been enacted, did not have official status.

The Bill to replace the Māori Language Act 1987 was introduced as an English language Bill in 2014. Before the Māori Affairs Select Committee, submissions on the Bill called for it to be enacted in both Māori and English, two of the official languages of New Zealand. This innovation was directed by the select committee, accepted by the Minister, and approved by Cabinet. The PCO and Te Puni Kōkiri then set about to develop a methodology for the translation and publication of the Bill, within the time frame for reporting the Bill back, which was extended by a further period of two months after the select committee had considered the English version of the revision tracked Bill.

The PCO had to provide for the publication of both versions of the Bill in a comprehensible format, allowing as far as possible that a reader could read through the whole Bill in either language. The PCO does not have a facing-page or two-column format available to it, as is the case in some other countries where statutes are enacted and published in dual-language form, such as Canada, Wales, and the Republic of Ireland.

Te Puni Kōkiri had the responsibility of providing for the translation of the Bill. A robust translation methodology had to be set up, as the Bill would have to be certified independently as a true and accurate translation of the English text of the Bill.

In addition, the standard of the translation had to support an interpretation clause that reads:

12 Interpretation of Act generally(1) The Māori and English versions of this Act are to be interpreted in a manner that best furthers the purpose of the Act and the principles set out in section 8.(2) The Māori and English versions of this Act are of equal authority, but in the event of a conflict in meaning between the 2 versions, the Māori version prevails.

Given that clause, the accuracy of the translation was of particular importance. The translator engaged by Te Puni Kōkiri is a certified interpreter and translator under the Māori Language Act 1987, has provided interpreter services in courts of law, is a national moderator (Māori) for NZQA unit standards, has lectured in te reo Māori at Victoria University of Wellington, and has undertaken many translation and quality assurance assignments for a range of public and private sector organisations. The translation of legislation was a new context for the translator.

In addition, a team of three independent legal and linguistic experts (“jurilinguists”) was appointed to assist the translator with the legal implications of the draft Bill. Finally the Bill was subject to the scrutiny of a further two linguistic experts certified as translators and interpreters under the Māori Language Act 1987. The PCO undertook the usual quality assurance measures on the English version of the Bill and, to the extent possible, the technical elements of the Bill as a whole. In addition, because the PCO does not have counsel sufficiently versed in te reo Māori, it engaged an independent jurilinguist to undertake peer review of the Māori version in compliance with the requirement for all Bills to be peer reviewed. This scrutiny involved the exchange of views and some adjustments before the Bill was ready to report back. The translator and Te Puni Kōkiri linguistic experts continued to scrutinise the Māori version. A modest supplementary Order Paper was required to clarify the English version and change certain elements of the translation. Though further changes required a recommittal of the Bill immediately before its third reading, the Bill was read a third time as scheduled on 14 April 2016.

Te Puni Kōkiri and the PCO are both aware of refinements needed to this process. Feedback from the translator and the jurilinguists indicates that it would have been helpful for them to have had involvement earlier in the process of drafting the Bill in English. Some English-language drafting techniques set up difficulties for a translator or do not work well in translation. In some respects, the English version could probably have been refined to avoid those linguistic difficulties. The vocabulary available to the translator is narrower than that available to the English drafter. Again, discussion at the development stage may have been able to avoid some difficulties.

The issues encountered in the production of this dual-language Act indicate the need for work to be done on a number of fronts to focus our minds on elements of the process that need refinement and development. The question of the time that must be allowed for a translation to be produced is another matter with significant implications for the overall process. Multi-lingual jurisdictions with years of experience comment on the significance of having adequate time to produce a fit-for-purpose translation. The PCO is involved in on-going work on the language of law being undertaken in the Law Faculty of Victoria University while Te Puni Kōkiri is considering the policy implications of legislation in dual-language form, as part of its overall Māori Language Strategy programme.

May 2016: Bill of Rights vetting

The Ministry of Justice supports the Attorney-General by providing advice about the consistency of all Bills with the New Zealand Bill of Rights Act 1990 (BORA), except for appropriation Bills and Bills in the name of the Minister of Justice (including Courts and Treaty Negotiations). Advice on Justice Bills is provided by Crown Law to avoid a conflict of interest for the Ministry of Justice.

The primary purpose of BORA vetting is to support the role of the Attorney-General under section 7 of BORA and Standing Order 265. Section 7 requires the Attorney-General to bring to the attention of the House of Representatives any provision in a Bill that appears to be inconsistent with any of the rights and freedoms affirmed in BORA.

BORA vetting promotes higher quality, human rights compliant legislation by encouraging government agencies to develop draft legislation that is consistent with fundamental rights and freedoms. The Ministry can assist government agencies to identify potential limitations and either avoid those limitations or explain why the limitation can be justified under section 5 of BORA. BORA vetting also helps to inform Parliament and the public about significant human rights issues in Bills.

In accordance with the CabGuide, we require a final version of the Bill two weeks before LEG.

We really appreciate agencies’ efforts to meet this deadline, and are happy to liaise at a much earlier stage in advance of the required two weeks. Please feel free to contact the BORA Coordinator to discuss.

Since 2003, BORA advice on specific legislation has been published on the Ministry website so that select committees and members of the public may refer to it during the passage of the Bill through the House. See page 9 for how to locate these reports and other resources.

For more information about any BORA issues that you may be faced with as part of your policy development work, please feel free to contact the BORA vetting team through humanrights@justice.govt.nz.

December 2015: General policy statements: timetable reminder

The general policy statement, which sets out the general policy of the Bill, should be provided to the PCO as soon as it is in final form but a minimum of two weeks before the Bill goes to LEG.

In practice, this means providing the general policy statement in time for PCO to incorporate it into the Bill before departmental consultation begins. It is important in the consultation process as it allows readers to understand the Bill in the context of the policy that the provisions are trying to implement.

December 2015: Reduced use of break-up SOPs

A break-up SOP is one that divides a Bill into two or more separate Bills. Break-up SOPs have often been used in the past to split an omnibus Bill into separate Bills that are then enacted as separate Acts.

We are changing our practice, in that omnibus Bills will no longer be divided as a matter of course. (However, Statutes Amendment Bills will at present continue to be divided.)

The use of break-up SOPs was largely to make it easier to access amendments in a paper-based world. For example, someone needing an up-to-date Act could buy a copy of the Act plus all of its separate amending Acts. But access is now primarily online, and amendments are incorporated when they come into force, so there is no longer the same need to divide Bills. It now makes more sense for a package of amendments to be kept together under a single title throughout its progress through the House, rather than splitting it into multiple Bills (and then multiple Acts) with different names.

If there is good reason to divide a Bill—such as where the Bill involves a new principal Act and amendments to other Acts—a break-up SOP will be used. Drafters will advise on the best approach for particular Bills.

December 2015: Departmental disclosure statements: reminder to use template

When preparing a departmental disclosure statement, please remember each time to download the template from the Treasury website and to check the guidance material.

In particular do not amend a previous disclosure statement. Downloading the template from the Treasury website will ensure that the latest version of the template is used and that all subsidiary questions and instructions (which may have been deleted from the previous disclosure statement) are available to the person preparing the disclosure statement.

In addition, please do not vary the template formatting because doing so may cause problems when the statement in Word format is converted into HTML for publication on the Disclosure Statement website (disclosure.legislation.govt.nz).

December 2015: New framework for instruments that require confirmation

A new framework for confirmable instruments will be in place from 1 January 2016.

Some Acts enable subordinate instruments to be made, but specify that those instruments lapse at a deadline unless earlier confirmed by an Act of Parliament. Confirmation of such instruments is usually done by the annual Subordinate Legislation (Confirmation) Act.

The Legislation (Confirmable Instruments) Amendment Act 2015 will replace complex confirmation provisions in over 30 Acts with one standard set of provisions. These new provisions will be set out in a new subpart 1A of Part 3 of the Legislation Act 2012, which will come into force on 1 January 2016. The new provisions update the current confirmation procedures and make them more workable.

Each Act that enables a subordinate instrument that requires confirmation to be made will cross-refer to the new standard provisions in the Legislation Act and set out the explanatory note requirements that must be met for a confirmable instrument.

whether to, and then when and how to, make an instrument a confirmable instrument

how to meet the new explanatory note requirements for a confirmable instrument.

Please continue to advise the PCO when you have subordinate legislation that needs to be confirmed by an Act. This will help the PCO coordinator of the annual Subordinate Legislation (Confirmation) Bill to assemble the Bill.

December 2015: Orders in Council: new wording in enacting statement block

From 1 January 2016 onwards, there will be a small change to the wording of legislative instruments that are made at Executive Council, to enable more flexibility as to whether the instrument is signed by the Governor-General or by the Administrator of the Government.

The main change that you may notice is that the enacting statement block will no longer use the words:

Pursuant to section xx of the xx Act, … the Governor-General makes the following order …

Please remember that, as mentioned in the July PCO Quarterly, Cabinet papers seeking approval to introduce a Bill or to submit a regulation to the Executive Council should identify whether any aspects of the Bill or the regulations depart from the default approach in the 2014 LAC Guidelines, and provide justification for any variation.

September 2015: Enhanced legislative scrutiny

Recently staff in Select Committee Services have begun a process called enhanced legislative scrutiny (ELS). This was proposed by the previous Clerk of the House, Mary Harris, and is being continued by the present Clerk, David Wilson.

The main purpose of enhancing select committee scrutiny of legislation is to provide a parliamentary focus on the legislative quality aspects of Bills. This is now one of the Office of the Clerk’s key impacts as listed in its Statement of Intent.

ELS involves scrutinising Bills that are referred to select committees to see whether they appear to conform to LAC Guidelines. Committee staff also consider the disclosure statements in relation to significant legislative features of the Bills being scrutinised.

The process is relatively new and just now getting under way. The scrutiny work is done when a Bill is introduced in the House to allow time for it to be completed before the Bill is referred to a select committee. If issues are identified in the legislation, these are brought to the attention of the select committee which then decides whether to seek further advice or not. The Office of the Clerk and PCO are forming a working group working together to clarify process matters.

July 2015: New Legislative Instruments now published at 11 am

New Legislative Instruments are now routinely published to the NZ Legislation website at 11 am on their day of gazetting, instead of the previous 4 pm publishing time. New Legislative Instruments will appear on the website shortly after 11 am.

Please remember, when publicly announcing a Legislative Instrument, not to release it ahead of the instrument being notified in the Gazette.

If you wish to publish a link to the instrument, you can contact us for help with setting this up in advance of publication. But again, don’t release the link before the instrument has been published online.

March 2015: Legislative disclosure statements: file size must be included in links to PDF documents

Legislative disclosure statements will usually include links to other documents on the responsible agency’s website or elsewhere. These documents will often be in PDF format.

The New Zealand Government Web Standards require that links to PDFs (and other non-HTML files) must include the size of the document being linked to, as well as its format (Web Usability Standard 2.5).

For example, a link to the “Guide to Working with the PCO” in PDF format might look like this:

September 2014: Cabinet Office Circular: Attorney-General’s Protocol for Release of Draft Government Legislation Outside the Crown

Section 61 of the Legislation Act 2012 confirms the long-standing position that draft legislation prepared by, or on behalf of, the Parliamentary Counsel Office is subject to legal professional privilege. Legal professional privilege in draft legislation lies with the Attorney-General as the principal law officer of the Crown. It is for the Attorney-General to determine whether to release draft legislation outside the Crown and, as a consequence, potentially waive legal professional privilege.

The Protocol (annexed to the Circular) supplements existing guidance contained in paragraphs 4.58 to 4.68 of the Cabinet Manual 2008, and makes clear when the Attorney-General’s approval must be sought for the release of draft legislation outside the Crown.

March 2014: Publication of Legislative Instruments

In the previous PCO Quarterly, we explained that we are not in a position to delay publication or gazettal of Legislative Instruments (LIs) once they have been made (see below).

Nor can we release LIs to agencies for publication before they appear in the Gazette.

Legislative Instruments are published to the New Zealand Legislation website at 4 pm on their day of notification in the Gazette, appearing on the website shortly afterwards. (Earlier web publication times are possible for LIs notified in supplementary Gazettes, if arranged in advance. See Notifying Legislative Instruments.)

However, if you want to prepare for publication by having a link to the New Zealand Legislation website ready in advance, we can help. Please ensure that the link isn't released before the LI is published, though, for obvious reasons!

December 2013: Gazettal and publication of Legislative Instruments

There have been several requests recently from agencies and Ministers' offices either to delay gazettal of Legislative Instruments (LIs) once made or to delay publication on the New Zealand Legislation website.

Please remember that LIs, once signed, are made. Gazetting is only a public notification. Further, the PCO must publish LIs in electronic form as soon as practicable after the LI is made (refer section 6(3) of the Legislation Act 2012). This also applies to Acts (section 6(2) of the Legislation Act 2012). There is no ability for the PCO to delay gazettal or publication of LIs.

Accordingly, if there are timing issues relating to the making and publication of a LI, they need to be factored in when deciding on which date the LI is to be made, and the LI only sent to Cabinet for approval and signature by the Governor-General at that time.

September 2013: Concerns that might arise during drafting

If you have any concerns relating to the drafting of legislation, for example, timetables, process, service, or relationship issues that you cannot resolve with the drafter, the matter should be referred, in writing, to the relevant PCO Drafting Team Manager. This should be done at the time the matter arises. A copy of the written concerns will be provided to the relevant counsel. The Drafting Team Manager will resolve the matter with you and the counsel, or may refer the matter to the Deputy Chief Parliamentary Counsel or Chief Parliamentary Counsel if resolution is not possible.

September 2013: Regulations Review Committee questions

Where the Regulations Review Committee has requested information relating to instruments that they are reviewing, feel free to discuss your response with your Drafting Team Manager. This can be helpful, particularly where questions contain a legal or practice component.

Introduction—new drafting practice adopted after review

The PCO has, in connection with the Legislation Act 2012 coming almost fully into force (on 5 August 2013), reviewed its practice for the drafting of (wholly new, or amended) empowering provisions for new subordinate legislation.

A particular focus of that review was making clear the status of instruments for the purposes of publication, disallowance, and tabling. The resulting new drafting practice adopted (with effect on and after 20 August 2013) ensures empowering provisions achieve their intended outcomes effectually, and in a way that is clear and more consistent.

An instrument's status can be made clear by reliance on applicable default rules, or by express statements (that confirm or modify the effect of applicable default rules). The Legislation Act 2012 envisages that other Acts will confirm or modify its effects.

The practice adopted indicates when empowering provisions do and don't state (confirm or describe) an instrument's status. That turns on whether the instrument made is an Order in Council ("traditional regulations"), or a non-Order in Council ("agency regulations"). If the position under the default rules is to be modified, the modification (overriding or departure) must be done by express statement.

The practice adopted balances:

avoiding declaratory provisions that don't alter, but only describe, the clear status under applicable default rules of Orders in Council; and

using declaratory provisions for non-Orders in Council ("agency regulations"), including where declaratory provisions have been required by Government responses to reports of the Regulations Review Committee.

Experience suggests that the Regulations Review Committee may recommend clarifying amendments to empowering provisions that leave unclear the publication, disallowance, and tabling status of non-Order in Council instruments that are legislative in character.

The PCO has, to give effect to the practice adopted, also developed standard wording (model clauses). A copy of this wording and these model clauses is below. It indicates briefly and clearly the usual practical outcomes of the practice adopted. This information has also been communicated to the Regulations Review Committee and to others involved with new legislation (for example to the Legislation Advisory Committee).

Drafting instructions must indicate the intended status of instruments for the purposes of publication, disallowance, and tabling.

PCO counsel will confirm with instructors whether the instrument's status under the default rules, or a modification of that status, is intended. Then, by following the new drafting practice, PCO counsel will ensure empowering provisions achieve their intended outcomes effectually, and in a way that is clear and more consistent.

When to modify defaults (override or depart from Legislation Act 2012)

Express modifications that ensure that Orders in Council are not a legislative instrument (LI), or not a disallowable instrument, must be required by deliberate policy decisions and clearly justifiable in the light of past practice and relevant principles. Exemptions can be expected to be scrutinised closely by the Regulations Review Committee.

Publication outside the LI series (for example, in full in the Gazette, or via a website, or otherwise in a special way) will more likely be appropriate for non-Orders in Council or "agency regulations". But the empowering provision for them must always provide for availability (by stating that the instrument is a legislative instrument, or otherwise).

All instruments of a legislative character (ie all those with a significant legislative effect) are, by default, disallowable by virtue of the Legislation Act 2012 section 38(1)(c), unless section 38(2) or (3), or another enactment (section 38(4)), provides otherwise. If an instrument with a significant legislative effect is, for compelling reasons, not to be disallowable, an express provision is required to secure that outcome. The compelling reason may be that the instrument is made by the House of Representatives, is a remuneration instrument (see, for example, Governor-General Act 2010 sections 5(5), 6(4), and 8(6)), or is subject to affirmative resolution (see, for example, Dog Control Act 1996 section 78A(3)).

Conclusion

Instructors are both welcome and encouraged to consult PCO on the new drafting practice for making clear new subordinate legislation's status, including modifying any default status.

Model clause 1: A [instrument] is a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

Departures from that standard position are:

If the instrument is to be published in the LI series (and will thus come within paragraph (c) of the definition of "legislative instrument"). For that departure the following provision is used:

Model clause 2: A [instrument] is a legislative instrument and a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

If the instrument is not to be disallowable, use:

Model clause 3: A [instrument] is not a disallowable instrument for the purposes of the Legislation Act 2012 and does not have to be presented to the House of Representatives under section 41 of that Act.

Overriding the Legislation Act for instruments within paragraph (a) or (b) of the definition of legislative instrument

If the instrument is not to be disallowable, use:

Model clause 4: A [instrument] is a legislative instrument but not a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

If the instructions are that the instrument is neither to be published in the LI series, nor to be disallowable, use:

Model clause 5: A [instrument] is neither a legislative instrument nor a disallowable instrument for the purposes of the Legislation Act 2012 and does not have to be presented to the House of Representatives under section 41 of that Act.

June 2013: Citing Standards in legislation

It is important that Standards are referenced correctly in legislation. This article provides information on how to achieve this. Standards New Zealand is also always ready to help with further advice or by vetting citations (see end of this article). The article covers Standards as issued by Standards Developing Organisations (SDOs) at both a national level and at an industry sector level.

Why incorporate a Standard by reference? Doing this avoids reproducing the lengthy and often technical information contained in the Standard within the legislation itself. However, if a reference is ambiguous, the advantage is lost and, worse, the intent of the legislation itself can be compromised through challenges around which Standard or which version of a Standard is required.

Citing a New Zealand Standard in an Act or regulation places obligations on the Standards Council of New Zealand. Section 10(4) of the Standards Act 1988 requires that ministerial permission is sought in order to amend, revise, revoke, or replace a cited Standard. Please advise Standards New Zealand when you incorporate by reference, so that they will not be in technical breach of the Act.

References to Standards in legislation should include, as a minimum, the following five components:

1. Prefix

Usually the prefix will indicate the issuing body as well as some information about the type of Standard it is, for example:

2. Number

Include all applicable part numbers. Examples are:

3604: This indicates Standard number 36044407.3.2: This indicates Standard number 4407, Part 3.2

Some SDOs use full stops or periods (.) between number and part number; others use dashes (-). The British Standards Institute (BSI) usually uses a dash between the number and part, and a period between part and subpart (eg BS 1560-3.2).Be careful not to cite a "generic" number as a means of referencing multiple Standards, unless explanation is given as to interpretation. For example, the only Standards in the AS/NZS 3008 range are:

AS/NZS 3008.1.1:2009AS/NZS 3008.1.2:2010

Here a reference to either AS/NZS 3008 or AS/NZS 3008.1 would be unclear as neither of these prefix/number combinations are actual Standards. AS/NZS 3008.1 by itself is simply a title construct to cover that branch in the subject and to group the Standards that come under it. For the avoidance of doubt, the individual Standards themselves should be referenced.

3. Year of issue

In most cases this is used by SDOs to differentiate between editions. Section 23 of the Standards Act 1988 covers some situations where legislation does not specify the year of issue of a New Zealand Standard. In such cases "any such citation shall (unless the context otherwise requires) be deemed to include and refer to the latest New Zealand standard with that citation (together with any modifications to it) promulgated by the Council before the Act was passed or the regulation or bylaw made" (emphasis added). Empowering legislation may require different interpretations as to which edition is referenced.

In contrast, citing an overseas Standard without specifying the year of issue creates uncertainty about which edition is being referenced, and this should be avoided if possible. However, not all SDOs use a year to indicate edition. Some use edition numbers, or a combination of year and edition number (for example IEC 60974-4 Edition 2.0 2010-08), while others provide only a publication date as the means of clearly identifying editions.

4. Title

Always accurately quote the full title. Many Standards titles can be very similar to each other. The full title for any given Standard includes, at a minimum, the number title, and the part title if it exists. To use the AS/NZS 3008.1.2 example again, the series title (overall subject) is "Electrical installations - Selection of cables", and the part title is "Part 1.2: Cables for alternating voltages up to and including 0.6/1 kV - Typical New Zealand conditions". These two titles should be concatenated to be fully correct: "Electrical installations - Selection of cables - Part 1.2: Cables for alternating voltages up to and including 0.6/1 kV - Typical New Zealand conditions".

5. Name of issuing organisation

If all the above details are clear and correct it may not be necessary to specify the name of the SDO. However it is desirable to do so, as the prefix itself does not always accurately indicate the SDO that produced the Standard. For instance, both Standards Australia and the Society of British Aerospace Companies (SBAC) have a Standard with the number AS 1162. Because of this, and in the interests of clarity, the citation should include the name of the SDO.

Note that some SDO organisational acronyms do not always match the English translation of the name. For example, ISO is officially the International Organization for Standardization, but is commonly known as the International Standards Organization.

You should also pay attention to the following:

Issuing authority

In the case of New Zealand Standards, the SDO is Standards New Zealand (SNZ), which operates under the authority of the Standards Council of New Zealand. Standards only become valid documents when approved by the Standards Council. It is the Standards Council that is the subject of the Standards Act 1988.

Revisions

Consideration needs to be given to future revisions of the cited Standard. Standards are revised on average every seven years. Explicit statements in the legislation explaining the status of later editions of the Standard, or of amendments that might be issued to the Standard, are desirable. Although section 10(4) of the Standards Act 1988 requires the Standards Council to obtain the permission of the relevant Minister before it can revise, amend, or withdraw Standards that are cited in an Act or regulation, overseas SDOs are, of course, not similarly constrained.

It is common for the legislation that authorises the issue of regulations to specify aspects of incorporation by reference, including how subsequent amendments to incorporated instruments should be dealt with. It is useful, however, to keep in mind the level of understanding that readers of regulations will have of matters like subsequent amendments. Being as clear as possible when specifying incorporated material, within the limits of policy objectives, is always beneficial.

Be aware that SDOs may replace (supersede) a Standard with multiple Standards, each potentially with a different number and possibly a slightly different subject matter. As a result, a blanket statement to the effect that the legislation extends to all later versions of the Standard may lose relevance over time.

Checking

Always check that the Standard actually exists. Check the prefix, number, year and title. Sometimes a future Standard (in the form of a draft Standard) will be cited. A draft Standard has only a very short lifespan and can be difficult or impossible to obtain once its original purpose is achieved, so the citation must make it clear how the transition from the draft Standard to the published Standard will affect the legislation. Once published, the Standard will very often differ from the draft that preceded it.

Checking the existence and details of the Standard is best done by viewing an original hard copy or through the website of the issuing SDO. Many SDO websites can be accessed through the ISO website links page at www.iso.org/iso/home/about/iso_members.htm.

New Zealand and joint Australian and New Zealand Standards can be checked at www.standards.co.nz by entering the number of the Standard into the search box at the top of the page. Always take note of the status of the Standard. If it has been superseded or withdrawn, you may choose to reference a more recent edition.

March 2013: Incorporation by reference: Legislation Act 2012

Background

Subpart 2 of Part 3 of the Legislation Act 2012 (the subpart) will, when it comes into force,* generally authorise most instruments made under an Act to give effect to provisions contained in a wide range of documents, without having to set out those provisions in the instruments themselves. That technique is known as incorporation by reference. It has clear attractions, principally in its avoidance of unnecessary duplication. But the technique can, if not properly managed, give rise to problems:

First, the incorporated material may not be readily accessible.

Secondly, it may be unclear whether future changes to the incorporated material are automatically incorporated into the instrument.

Thirdly, the scope for consultation with those affected by the instrument is likely to be curtailed if extraneous material is brought into force without being set out in the instrument.

Application of subpart

The subpart applies to most kinds of subordinate instrument. "Instrument" is widely defined as any instrument that has legislative effect and that is authorised by an enactment, regardless of what it is called (see section 48(1)). The definition specifically mentions regulations, rules, Orders in Council, notices, bylaws, codes, and frameworks. The term framework as a name for an instrument may seem unusual but it is used to describe instruments in the Education Act 1989 (for example, the New Zealand Qualifications Framework) and also in the Accident Compensation Act 2001. The definition of instrument is therefore expansive, but it does exclude bylaws subject to the Bylaws Act 1910.

An instrument may incorporate material by reference in reliance on the subpart unless the empowering Act expressly provides to the contrary. In the absence of such an express exclusion, the subpart may be relied on even if the Act under which the instrument is to be made was enacted before the commencement of the subpart and even if that Act provides for incorporation of material by reference (see section 50). But the subpart does not limit the provisions of other enactments, such as the Standards Act 1988, which authorises the incorporation by reference in regulations or bylaws of standards promulgated by the Standards Council (see section 57).

What may be incorporated

The subpart authorises instruments to incorporate by reference:

a standard, framework, code of practice, recommended practice, or requirement originating from an international organisation or a national organisation, or prescribed in a country or jurisdiction or by any group of countries; or

any other written material that deals with technical matters and that can reasonably be regarded as being too large or impractical to include in, or publish as part of, the instrument.

Availability of material proposed to be incorporated or incorporated

Material that is proposed to be incorporated by reference in an instrument or that has been incorporated must be made available in accordance with the subpart if the subpart is relied on as authority for the incorporation. The chief executive of the department or other agency promoting the instrument must:

make copies of the material available for inspection and purchase; and

make copies of the material available, free of charge, on an internet site maintained by or on behalf of the department or other agency, unless doing so would infringe copyright.

The chief executive may make copies of the proposed material available in any other way that he or she considers appropriate in the circumstances. This may be particularly appropriate in cases where, because of copyright reasons, the material cannot be freely published on the internet. In cases where there is no impediment to publication on the internet and publication on the internet is accordingly required, that requirement may be complied with by providing a hypertext link.(see sections 51(2) and 52(3) and (4))

The ways in which the material is made available must be notified in the Gazette when it is proposed to incorporate material in an instrument and also once it has been incorporated in an instrument. (see sections 51(1)(d) and (2)(b) and 52(2)(d) and (3)(b))

Consultation on proposed incorporation

Before material is incorporated by reference in an instrument, the chief executive of the promoting department or agency must allow a reasonable opportunity for persons to comment on the proposal to incorporate the proposed material and must consider any comments made.(see section 51(1)(e) and (f))

Certainty of legislative effect of incorporated material

No change to material incorporated in an instrument has any legal effect unless a later instrument incorporates the change in accordance with the subpart.(see section 53)

An instrument that incorporates material by reference is a disallowable instrument. However, the material itself does not have to be presented to the House of Representatives.(see sections 56 and 55(2))

Evidentiary matters

The chief executive of the promoting department or agency must retain a copy of any material incorporated by reference in an instrument in reliance on the subpart and must certify it as a correct copy. The production of such a copy is, in the absence of evidence to the contrary, sufficient evidence of the material that has been incorporated in the instrument. (see section 54)

Comment

The subpart will provide general authority for subordinate legislation to incorporate material by reference and will do this on a principled basis that complies with the principles formulated by the Regulations Review Committee and the Legislation Advisory Committee. It should generally remove the need for separate provisions in Bills authorising incorporation by reference. For that reason alone, it will receive a warm welcome from instructors and drafters alike.

*The subpart, and the other provisions of the Act not yet in force, is likely to come into force in the third quarter of this year. [Update: all provisions come into force on 5 August 2013 or before, with the exception of minor consequential amendments to the Biosecurity Act 1993.]

March 2013: Disallowable instruments

Legislation Act 2012, subpart 1 of Part 3

Key points

The Legislation Act 2012 includes new provisions, to commence on or before 1 July 2014 (but likely to be in the third quarter of this year), on disallowance of items of subordinate legislation that are "disallowable instruments". [Update: all provisions come into force on 5 August 2013 or before, with the exception of minor consequential amendments to the Biosecurity Act 1993.]

The 2012 Act uses separate definitions for (a) publication of "legislative instruments" (in the new LI series replacing the SR series) and (b) disallowance of "disallowable instruments".

The new disallowance provisions replace the Regulations (Disallowance) Act 1989 (under which regulations were disallowed, for the first time ever, at the close of 27 February 2013).

Related changes will be made to the Standing Orders that define the RRC's functions

Every new empowering provision for regulations or another kind of subordinate legislative instrument needs to make clear that instrument's publication status and disallowance status.

This article introduces the 2012 Act, and summarises the new disallowance regime.

2012 Act combines provisions on legislation

The Legislation Act 2012 got Royal assent on 11 December 2012. On 12 December 2012, some of its provisions came into force, namely: Part 1 (general provisions); subpart 3 of Part 2 (revision); and most of Part 4 (provisions relating to the PCO and the repeal of the Statutes Drafting and Compilation Act 1920). Its other provisions, including subpart 1 of Part 3 (ss 37 to 47) on disallowable instruments, commence on 1 July 2014 or an earlier appointed date.

The Act's purposes include (s 3(a)) to bring together the main provisions of New Zealand legislation on the drafting, publication, and reprinting of legislation, and the disallowing of instruments. The 2012 Act will therefore replace (s 77(2)) the Regulations (Disallowance) Act 1989, under which regulations were disallowed for the first (and perhaps only) time on 28 February 2013: SR 2013/32. The Act implements most of the legislative recommendations made in two Law Commission reports:

As introduced on 25 June 2010, the Bill for the Act (162-1), in its explanatory note, said a key new defined term was:

"disallowable instrument, which has the meaning given in [section 38]. This term is used primarily in subpart 1 of Part 3 but is also used elsewhere in the Bill. The definition is intended to capture instruments that are [by definition publishable officially as legislative instruments], are expressly stated by an Act to be disallowable instruments, or have a significant legislative effect (within the meaning of [section 39]). Where an existing Act applies the Regulations (Disallowance) Act 1989 to a particular kind of legislative instrument, it is intended that the Schedule of this Bill will update that provision by stating that legislative instruments of that kind are disallowable instruments under subpart 1 of Part 3 of this Bill. So, the definition will need to be applied only if the empowering Act is silent about the status of the instrument for the purpose of disallowance".

In its 1 December 2010 report on the Bill (162-2), the Regulations Review Committee noted the Bill defines subordinate legislation separately and differently (and so does not continue the former, shared or "multi-purpose" definition of "regulations") for publication and disallowance purposes. The RRC was satisfied that the Bill would broaden the scope of disallowance, especially by covering instruments with "significant legislative effect"; a test that focuses on the substance of delegated legislation rather than its form or description, and reverses the former position that allowed delegated legislation to be excluded from the disallowance regime depending on how it is described.1

Speaking in the Bill's third reading debate on 5 December 2012, Hon Christopher Finlayson QC, Attorney-General, said: "The bill carries forward the existing regulations disallowance regime to allow Parliament to continue to oversee the use by the executive of delegated lawmaking powers. Very important is that it defines more clearly the nature of the subordinate legislation that will be the subject of the disallowance regime ... This has not always been clear, because some delegated legislation has been excluded from the disallowance regime on the basis of its form, rather than its effect. The bill defines a disallowable instrument to include an instrument that has significant legislative effect-that is, it affects the rights and obligations of the public. This has the effect of broadening the scope of the Regulations Review Committee's jurisdiction and strengthens parliamentary scrutiny of regulations and regulation-making powers."

The RRC's functions under the Standing Orders will be updated (by a Sessional Order effective when the 2012 Act's provisions commence) to reflect the new terminology of "disallowable instruments".2

What is a disallowable instrument? (sections 37 to 40)

Section 38 defines "disallowable instrument". In general, an instrument will be disallowable (under subpart 1 of Part 3) if the instrument:

is by definition publishable officially in the publication series for "Legislative Instruments" (as defined in s 4, and replacing the "Statutory Regulations" or "SR" publication series); or

is disallowable because of the operation of another enactment (for example, an Act may specifically state that an instrument is a disallowable instrument); or

has "a significant legislative effect", as defined in section 39.

Existing Acts that refer to the Regulations (Disallowance) Act 1989 are consequentially amended in the manner indicated by the Schedule so that they state whether or not an instrument is disallowable. So, the "significant legislative effect" test in section 39 will apply where an Act enables subordinate legislation to be made, but is (exceptionally) silent on the question of disallowance.

Section 39 defines significant legislative effect. To qualify under this definition, the effect of the instrument must be:

to create, alter, or remove (or to determine or alter the temporal application of) rights or obligations (as defined broadly by s 37); and

to determine or alter the content (or temporal application of) the law applying to the public or a class of the public.

In applying that test, the following must be disregarded: (a) the description, form, and maker of the instrument; (b) whether one or more of its provisions lapses unless confirmed by Act of Parliament; (c) whether it also contains provisions (for example, explanatory notes) that are administrative.

Section 40 gives some examples of how the temporal application of rights or obligations can be determined or altered. An example is an instrument that appoints a date on which specified statutory rights or obligations come into force. This therefore continues the current law as recognised, for example, in New Zealand Maori Council v Attorney-General [1996] 3 NZLR 140 at 164 (CA) (Commercial Radio case), as cited in New Zealand Maori Council v Attorney-General [2012] NZHC 3338 at [115] per Ronald Young J (Water Rights case) and [2013] NZSC 6 at [71].

Sections 38(1)(c), 39, and 40 will need to be applied only if the empowering Act is silent about the status of the instrument for the purpose of disallowance. Empowering Acts should always make clear, by express provision, an instrument's status for publication and disallowance purposes. The RRC regards unfavourably empowering Acts that leave unclear the disallowance status of instruments.

Tabling of legislative instruments and of instruments that Acts state are disallowable

Section 41 requires legislative instruments, and those instruments that are stated by an Act to be disallowable instruments, to be presented to the House of Representatives not later than the 16th sitting day after they are made. It replaces section 4 of the Regulations (Disallowance) Act 1989. Arrangements are in place to ensure that this happens for instruments published by the PCO.3 But material incorporated by reference in a disallowable instrument usually need not be tabled (see, for example, the exception in s 55(2) of the 2012 Act for material incorporated under s 49 of that Act).

How instruments are disallowed

Section 42 provides for actual disallowance by a resolution of the House of Representatives. A member of Parliament would start this process by giving notice of motion to disallow a regulation. Section 42 replaces section 5 of the Regulations (Disallowance) Act 1989.

Section 43 provides for automatic disallowance of an instrument where certain things do not happen within 21 sitting days after a notice of motion to disallow the instrument has been given. This process is activated if, at the end of that period:

Section 45 applies where the instrument being disallowed has amended an Act or other instrument, or has repealed an Act or revoked an instrument. In such a case, the earlier enactment is restored or revived. Section 45 replaces section 8 of the Regulations (Disallowance) Act 1989.

Amendment or substitution of instruments by House of Representatives

Section 46 empowers the House of Representatives to amend a disallowable instrument or revoke and replace the instrument. This power was exercised for the first time in 2008 to amend the Notice of Scopes of Practice and Related Qualifications Prescribed by the Nursing Council of New Zealand (see SR 2008/362). Section 46 replaces section 9 of the Regulations (Disallowance) Act 1989.

Notification of disallowance, amendment, or substitution

Section 47 requires any actual or automatic disallowance of a disallowable instrument and any amendment or replacement of an instrument under subpart 1 of Part 3 to be notified by the Clerk of the House of Representatives. The notice is published by the PCO (see, for an example, SR 2013/32). Section 47 replaces section 10 of the Regulations (Disallowance) Act 1989.

Disallowable instruments are a subcategory of "regulations" as defined in Interpretation Act 1999

Section 77(4) ensures that the Interpretation Act 1999 s 29 definition of "regulations" includes "disallowable instruments" (as it did "regulations" under the Regulations (Disallowance) Act 1989). For the purposes of an enactment (including, without limitation, the Interpretation Act 1999), a disallowable instrument is therefore generally both "a regulation" and "an enactment".

Consult PCO on making clear disallowance status of new kinds of subordinate legislation

Empowering Acts should always make clear, by express provision, an instrument's status for publication and disallowance purposes. If an instrument with a significant legislative effect is, for compelling reasons, not to be disallowable, an express provision is required to secure that outcome. The compelling reason may be that the instrument is made by the House of Representatives or is subject to a special affirmative resolution or disallowance regime. (An example is the disallowance regime in the National War Memorial Park (Pukeahu) Empowering Act 2012 ss 32 to 36.) Instructors are both welcome and encouraged to consult PCO on issues relating to disallowable instruments. 4

3 For more information on presentation of instruments not published in the SR or LI series but stated by an Act to be disallowable, see Presentation of papers to the House: Presenting regulations and deemed regulations on the Parliament website.

Commencement and effective dates of Legislation Act 2012 provisions

On 12 December 2012 (day after Royal assent date), these provisions commenced: Part 1 (general provisions), subpart 3 of Part 2 (revision Bills), and Part 4 (PCO) except for Part 4 repeals, etc, related to publication, reprints, disallowance, and incorporation by reference

On 1 July 2014 or an earlier date appointed (likely to be in the third quarter of this year), these provisions commence: Subparts 1 and 2 of Part 2 (publication and reprints), Part 3 (subordinate legislation: disallowable instruments and incorporation of material by reference), and related Part 4 repeals, etc [Update: all provisions come into force on 5 August 2013 or before, with the exception of minor consequential amendments to the Biosecurity Act 1993.]

Section 79 lets the SR series run until end of year in which ss 11 and 12(2)(d) commence.

In Down v R [2012] NZSC 21 at [36], William Young J's "dispiriting conclusion" was that criminal infringement regimes lack consistent legislative pattern. The Judge also expressed the "view that those responsible for the drafting ... have sometimes lost sight of the Summary Proceedings Act [1957 (the SPA)] provisions". A comprehensive legislative review is, the Judge suggested, warranted.

The PCO has checked its current drafting practice to ensure that it is consistent and effectual in relation to the key points at issue in Down. This check of drafting practice raises, if you are instructing the PCO in respect of criminal infringement regimes, these key requirements:

Ensure proposals to create or vary criminal infringement regimes have been consulted on with the Ministry of Justice, and are covered, fully, by specific policy approvals.

Indicate the intended process for prosecuting the infringement offences, especially if that process departs from the standard SPA infringement offence process (say, if infringement offences are to be prosecutable only by infringement notice, or a special defence is needed).

Indicate the intended penalties for the infringement offences, especially if they depart from the usual pattern of infringement fee or (if a hearing occurs) fine up to a maximum and any other orders, plus prescribed costs (say, if an infringement fee will be the only penalty, or additional consequences, such as demerit points or forfeiture, may or must follow).

The Down case shows some Acts' criminal infringement regimes are "independent", so their offences are not for SPA purposes infringement offences to which the SPA s 21(1)(a) leave requirement and the SPA s 78A bar on convictions apply. If the prosecutor proceeds by laying an information or (after full commencement of the Criminal Procedure Act 2011) filing a charging document, no leave is required for the prosecution, and a conviction and criminal record can be entered and created. So, for an independent infringement offence, whether the prosecutor seeks a conviction and a sentence dependent on a conviction (such as a sentence of imprisonment) is, as Justice McGrath says in Down (at [30]), "entirely a matter of prosecutorial judgment in every case".

Indicate if you propose to create independent infringement offences that, if the prosecutor chooses, can be prosecuted (with or without leave under the SPA s 21(1)(a)) by laying an information or filing a charging document, and that can result in a conviction.

BUT NOTE THAT the Ministry of Justice has indicated that it is strongly opposed to the creation of new independent regimes - which can result in a conviction - pending its review of infringement regimes.

Infringement offences should not be punishable by imprisonment. If imprisonment is an appropriate penalty for serious cases, it can attach to non-infringement offences for the same conduct as is covered and punished (if less serious) by the infringement offences.

Indicate, for any regime (SPA or independent), whether the SPA s 21(1)(a) leave requirement is to apply for an offence prosecuted by laying an information or filing a charging document.

July 2011: Procedure for introducing a Bill

When a Government Bill is ready for introduction, the process is set in motion by the drafter. It is provided here as some useful background for instructors:

The drafter requests that the Bill be printed for the House, and arranges for two copies to be sent to the Leader of the House.

The drafter also sends copies to the Prime Minister's Office, the Minister in charge of the Bill, the Bill of Rights team at the Ministry of Justice, and the instructors.

Under Standing Order 270 [now Standing Order 272], a Government Bill is introduced on a sitting day by the Leader of the House informing the Clerk by 1 pm on that day of the Government's intention to introduce the Bill. One of the Leader of the House's copies is attached to the form advising of the intention to introduce. The Office of the Clerk receives separately the House copies of the Bill, which are embargoed until the introduction of the Bill is announced in the House shortly after it starts sitting.

If the Bill is to be introduced on a working day on which the House is not sitting, then the 1 pm limitation does not apply. However, if the Bill is to be introduced outside of normal working hours, the drafter will have to make special arrangements with the Office of the Clerk.

The Bill will normally be published on the New Zealand Legislation website on the day of introduction.

September 2010: Avoiding discrepancies between commentary and Bill

We have noted a developing trend for any discrepancies between the reported-back version of a Bill and its commentary to be used by interested parties as a reason to press for amendments to the Bill, or later, to the Act.

It is therefore critical for departmental officials to check the commentary carefully before the select committee reports back to the House, and to discuss any discrepancies between commentary and the Bill with the PCO.